Can an employer terminate an employee for maintaining a vulgar and sexually explicit personal Facebook page?
Before you decide your answer, allow me to give you a few more details. The employer in this instance is the CEO of a conservative financial services firm. She received a call from one of her employees, who complained that a coworker—a high-level relationship manager—had a publicly accessible Facebook profile featuring videos of strippers, comments about homosexual activity, racy pictures, and explicit language. The CEO contacted me and wanted to immediately fire the employee in question, claiming that anyone performing a basic web search for her company or the employee’s name could easily find the public Facebook profile. We stayed on the phone while I searched Google and, lo and behold, there it was. None of the comments were related to the employee’s job or the company, but it certainly wasn’t the image a financial planning firm would want to put out into the world. So, with these facts in mind, back to my original question: Could the CEO legally terminate this at-will employee for his posts? If you answered “yes,” you would be correct. However, termination is not the only option, nor is it the most prudent. Instead, a better approach would be to call the employee into the office and talk with him privately about the contents of his Facebook page and why it’s important to change his privacy settings. And that’s what the CEO did. The employee expressed extreme embarrassment and instantly rectified the situation. As a result, the company successfully averted a crisis and the employee kept his job. Why did I tell that story? Because not all social media snafus have to end in severe disciplinary or legal action. In Part 1 and 2 of this series, I emphasized the continually-evolving nature of social media, as well as the challenges employers have faced in unpacking and complying with the NLRB’s guidance surrounding its use. The NLRB’s instructions, including its most recent March 2015 guidance, are—as they say—clear as mud. There is no piece of advice or procedure regarding social media that applies 100% of the time. Even equipped with a comprehensive understanding of the law, employers should be careful not to jump to conclusions. Do not discount the power of an open discussion. With that in mind, let’s take a look at several examples of policy language the NLRB deems unlawful as well as the lawful, amended versions the board provides.
Unlawful vs. Lawful Employee Policy Examples
Unlawful policy: “Employer prohibits discriminatory, defamatory, or harassing web entries about specific employees, work environment, or work-related issues on social media sites.” Amended, lawful version: “Employer prohibits use of social media to post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex… or other protected characteristic.” What’s the difference? The NLRB considered the policy, as originally written, to be unlawful because it could theoretically apply to protected activity under Section 7 of the National Labor Relations Act (NLRA), such as discussions about the employer’s labor rules, working conditions, or treatment of personnel. The key phrases in this instance may be “defamatory” and “work environment or work-related issues,” as an employee could reasonably construe those to affect Section 7 activity. Concerning the amended version, the board found the more specific rules appropriate because they identified types of conduct that are already illegal, such as harassment and discrimination on the basis of race, sex, and other protected classifications. On May 4, 2014, after seeing dozens and dozens of cases related to social media use, the NLRB issued a proposed social media policy, attempting to spoon-feed management with sample language. The policy is, in fact, rather basic. Here is a sample section to illustrate just how basic: Always be fair and courteous to fellow associates, customers, members, suppliers or people who work on behalf of the Company. Also, keep in mind that you are more likely to resolve work-related complaints by speaking directly with your co-workers or by utilizing the Communications policies in this Handbook than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying. In 2015, the NLRB issued additional guidance stemming primarily from an unfair labor practice charge filed against the fast food restaurant Wendy’s. This time around, the board actually combed through and dissected the Wendy’s employee handbook. Consequently, the NLRB’s newest guidance not only covers social media, but confidentiality, disrespectful behavior, inappropriate discussions, third-party communications, use of the company’s intellectual property, recording conversations at work, conflicts of interest, and so on. That brings us to the next four examples, which exemplify the NLRB’s (sometimes not so) helpful tips on lawful and unlawful employee policy language.
Topic: Confidential information Unlawful policy: “Do not discuss ‘customer or employee information’ outside of work, including ‘phone numbers [and] addresses.’” Amended, lawful version: “No unauthorized disclosure of ‘business secrets’ or other confidential information.” What’s the difference? The NLRB found the term “employee information” overly broad. The board disallows employers from banning disclosure of employee contact information without regard for how that information is obtained. The second sentence, on the other hand, the board deems “facially lawful” for three reasons:
- It does not reference information regarding employees or employment terms and conditions.
- Although there is a reference to confidential information, it’s not defined in an overly broad manner.
- The board does not consider the language to restrict NLRA Section 7 communications, i.e. an employee’s right to engage in protected, concerted activities such as self-organization or collective bargaining.
Topic: Employee conduct Unlawful policy: “Be respectful to the company, other employees, customers, partners and competitors.” Amended, lawful version: “Employees will not be discourteous or disrespectful to a customer or any member of the public while in the course and scope of company business.” What’s the difference? Again, the NLRB found the first policy overly broad. It argued employees could interpret the language, specifically the word “company,” to prohibit protected, concerted activity such as criticism of their supervisors or the organization at large. The second policy, by contrast, is lawful because “employees would understand” that it expresses “the employer’s legitimate expectation that employees work together in an atmosphere of civility.”
Topic: Intellectual property Unlawful policy: “Do not use Company logos, trademarks, graphics, or advertising materials in social media.” Amended, lawful version: “Respect all copyright and other intellectual property laws. It is critical that you show proper respect for the laws governing copyright, fair use of copyrighted material owned by others, including the Company’s own copyrights, trademarks and brands.” What’s the difference? The NLRB believes employees could read the first policy to ban any use of the company’s IP, including fair use for the purposes of Section 7 activity. The second policy ostensibly allows for this activity through the phrase “respect all copyright and other intellectual property laws.” Generally speaking, only IP attorneys understand IP laws, so one would think the first policy would be sufficient to a layperson, but the NLRB is clearly concerned with semantics.
Topic: Recording conversations Unlawful policy: “No employee shall use any recording device including audio, video or digital for the purpose of recording any Company employee or operation.” Amended, lawful version: “No cameras are to be allowed in the store or parking lot without prior approval from the corporate office.” What’s the difference? The second version is lawful because, according to the NLRB, it provides context. A policy that simply disallows all recording devices across all locations infringes on an employee’s right to use “personal equipment to engage in Section 7 activity,” and thus veers into unlawful territory. The amended sentence limits the scope and relates to other policies such as patient privacy and television filming. Social media remains a gray area for employers, and the NLRB’s attempts to provide guidance may have confused matters more. Rest assured that the board does not conduct random site visits and handbook audits. The NLRB only addresses these issues when an employee brings the issues to them through an unfair labor practice charge, or if the issues come up in a union dispute or organizing campaign. That is not to say that employers shouldn’t strive to get it right. A company should always comply with labor laws to avoid a conflict in the first place. Make sure you consider your policies carefully, and have them reviewed by a labor attorney.
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